TEN TSHERING LEPCHA Vs. THE STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal is directed against the judgment dated 01-03-2013 of the Sessions Judge, South and West Sikkim at Namchi in S.T. Case No.06 of 2011 by which the Appellant was convicted of the offences under Sections 448/376 of the Indian Penal Code, 1860 (for short "IPC") and sentenced to undergo simple imprisonment of 7 (seven) years and to pay a fine of Rs. 1,000/- (Rupees one thousand) only failing which to undergo further simple imprisonment of 1 (one) month for the offence under Section 376 IPC. Against the offence under Section 448 IPC, he was directed to undergo simple imprisonment of 1 (one) year, with the sentences in both the offences to run concurrently.

(2.) (i). The facts of the prosecution case as would be necessary for disposal of this Appeal is that when investigation was carried out against the Appellant under Section 376 IPC by the Jorethang Police in a case registered against him under that Section vide Jorethang P.S. Case No.04(01)2011 dated 10-01-2011, it was revealed that on 08-01-2011 when the victim Arati Biswakarma, P.W.10 who was of 7 (seven) years of age was in her house with her 3 (three) years' old younger brother Mandeep Biswakarma while their parents, Mamta Tamang, P.W.5 and Jit Bahadur Biswakarma, P.W.8, were away at the house of one Ram Prasad Biswakarma, P.W.9, the Appellant opened the door that was latched from the outside and entered the house. Upon entering when he found only the two sleeping, he chased the younger brother out of the house and then raped the victim.

(3.) (i). During the arguments, Mr. Jorgay Namka, Learned Legal Aid Counsel, appearing on behalf of the Appellant, submitted with all fairness that he did not dispute the prosecution having established the factum of the Appellant having entered the house of the victim during the absence of her parents. His only contention was that the prosecution had failed to establish the offence of rape as the medical and other evidence produced by them did not support such a case.